In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-4616 & 05-4617

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HUGH WILLIS and VICTOR TROUT,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 01 CR 676-1 & 01 CR 676-3—John F. Grady, Judge.

____________

ARGUED NOVEMBER 30, 2007—DECIDED APRIL 23, 2008

____________

Before EASTERBROOK, Chief Judge, and FLAUM and

WILLIAMS, Circuit Judges.

FLAUM, Circuit Judge. On December 19, 2000, a shipment of 1300 Sony digital cameras disappeared from

O’Hare International Airport soon after arriving on an

American Airlines flight from Japan. After an investigation resulted in confessions from two American Airlines

employees—defendants Hugh Willis and Victor Trout—the

United States charged them both with stealing and conspiring to steal a foreign shipment. A jury convicted Trout

of conspiracy but acquitted him of the theft charge, resulting in twenty-seven months’ imprisonment. Another
2 Nos. 05-4616 & 05-4617

jury convicted Willis on both counts, earning him forty-one

months’ imprisonment. These appeals followed, raising

a number of issues concerning the administration of the

trials and one related to sentencing. For the reasons set

out below, we affirm Trout’s and Willis’s convictions,

but vacate Willis’s sentence and remand for resentencing.

I. Background

On the afternoon of December 18, 2000, a shipment of

1300 Sony digital cameras arrived at O’Hare International

Airport on an American Airlines flight. The shipment

came from Japan, and Nippon Express was supposed to be

pick it up the next day. But when Nippon Express came to

get it, the cameras, all $690,885 worth, were gone. Understandably put out by the loss, Nippon Express contacted

American Airlines who, in turn, contacted the Chicago

Police Department to investigate.

The investigation soon bore fruit. On the night of the

disappearance, an American Airlines employee, Rosarito

Solomon, had come upon three individuals—Hugh Willis,

a man named Mark Patterson, and an unidentified man

in a ski mask—taking apart what appeared to be a shipment of cameras. Their behavior was suspicious for a

number of reasons. Willis told Solomon that they were

breaking down the shipment because it had been crushed

en route to London, but the men hadn’t filled out a damage

report as required. Also, the men were working outside

and shipments were typically broken down indoors. And

based on the tracking number for the shipment, the

contents were supposed to stay in Chicago, not move on to

London as Willis had said. Over the next few days, cameras started to turn up in strange places around the air-
Nos. 05-4616 & 05-4617 3

port; three were found in the back of a luggage tug and

another one showed up in a misplaced cart behind a

privacy fence.

On December 22, 2000, Chicago detectives Milorad

Sofrenovic and Stephan Combes interviewed Willis about

the lost cameras. At first, Willis denied any knowledge. But

based on what Sofrenovic already knew about Willis’s

involvement, he arrested him anyway. Willis soon confessed, first verbally then in writing. As he recounted it,

the heist was a straightforward one. Willis said that

when the shipment arrived, he decided to steal it, thinking

the shipment consisted of camcorders. So he, Patterson,

and Trout began breaking down the load of cameras

and putting them into freight cars. Trout then took the

shipment out of the cargo area, and later that night, the

men divvied up the cameras, eventually taking them offsite and selling them. Willis would receive $1500 for his

lot of the cameras.

A few days later, Trout confessed to Officers Sofrenovic

and Combes as well. He said that Willis had called him

on December 18 to ask if he wanted to make some extra

money, but Trout was noncommital. Later, Patterson

called asking if Trout would move the load of cameras.

Trout agreed and moved the cameras with the understanding that he would be paid after they were sold; he said

he would’ve been happy to receive $200 for his time.

Circumstantial evidence made Trout’s involvement

plausible. He was at work but unaccounted for from 4 P.M.

on December 18 until 2 A.M. on December 19—the time of

the robbery. And he had access to the luggage tug in

which the three misplaced cameras were found.

In light of this evidence and their confessions, indictments were forthcoming for both Trout and Willis, charg-
4 Nos. 05-4616 & 05-4617

ing them with stealing a foreign freight shipment in

violation of 18 U.S.C. §§ 659 & 2 and conspiring to do so

in violation of 18 U.S.C. § 371. A jury acquitted Trout of

the actual theft, but convicted him of conspiracy, resulting in twenty-seven months’ imprisonment. A separate jury convicted Willis on both counts, and the judge

sentenced him to forty-one months’ imprisonment. In

reaching this sentence, the court found that Willis had

perjured himself on two separate occasions and added

two, two-level obstruction-of-justice enhancements. These

appeals followed.

II. Discussion

Together, Willis and Trout raise five issues on appeal,

four of which concern the administration of the trial and

one that concerns sentencing. Willis challenges the government’s use of a peremptory strike against the only

African-American venireperson and the district court’s

imposition of two obstruction-of-justice enhancements

in calculating his sentence. In his appeal, Trout submits

that the government both committed prosecutorial misconduct by objecting during his attorney’s closing argument and improperly commented on his decision not to

testify at trial. He also claims that the district court improperly handled a jury note sent out during deliberation.

We discuss each issue in turn, providing additional facts

as necessary.

A. Willis’s Appeal

1. Batson Claim

On appeal, Willis claims that the dismissal of the only

African-American venireperson constituted a Batson viola-
Nos. 05-4616 & 05-4617 5

tion. Of the forty people called in the venire for Willis’s

trial, only one—Juror No. 1—was African American. After

a recess between voir dire and the selection of the jurors

for trial, the government asked the court if it could pose

a few more questions to Juror No. 1. She had recently

moved from being the manager of a fast-food restaurant

to the ranks of the unemployed. The government doubted

that a person would voluntarily reduce her income from a

managerial salary to unemployment benefits. And the

government’s attorneys wondered if theft or misconduct

precipitated the move, potentially fomenting “animosity

towards people in authority” and ostensibly biasing her

against the government’s case. Because she was the only

African-American juror, the government did not want to

immediately strike her. So it proposed asking her a few

more questions to clear up her employment history instead.

Willis’s attorney characterized the government’s motivations less charitably. He responded to the government’s

request by voicing his “concern . . . that the government

[wa]s hunting . . . for . . . some independent reason” to

strike the “single African-American individual.” The

court ultimately denied the government’s request for

more questioning. But because it considered the government’s concerns to be “real” and “reasonable,” it said

that it would be “within [the government’s] rights to

excuse her . . . on a peremptory challenge.” He told

Willis’s attorney that he could “make a Batson objection,

but [he didn’t] think it would be well taken.” After the

court made its decision, Willis’s attorney said that he

“wanted to note for the record the action of the government striking Juror No. 1, . . . the only African-American

in the entire 40-member venire.” The court recognized his

concern, but said that it could not “require the govern-
6 Nos. 05-4616 & 05-4617

ment to take a juror that it would not otherwise take just

because that juror happens to be black.”

The Equal Protection Clause of the Fourteenth Amendment prohibits a party from dismissing a potential juror

because of that juror’s race, Batson v. Kentucky, 476 U.S. 79

(1986), a prohibition that applies to the federal government as a feature of due process. Dunham v. Frank’s Nursery

& Crafts, Inc., 919 F.2d 1281, 1282 n.4 (7th Cir. 1990). Courts

preserve this substantive right through a three-part procedural device: (1) if an objecting party makes out a prima

facie showing that the opposing party has dismissed a

potential juror for impermissible reasons, (2) the burden

shifts to the opposing party to articulate a non-discriminatory reason for the dismissal, (3) after which the district

court must determine whether this reason is deserving of

belief and whether the objecting party has proved an equal

protection violation. Batson, 476 U.S. at 97-98.

Were the government’s concerns over Juror No. 1’s

employment history the actual reason for dismissing her?

The parties dispute how much deference we should give

the district court’s affirmative answer to this question.

In the government’s estimation, Willis forfeited this

claim by never raising a proper Batson challenge in the

district court, meaning we would only review the decision for plain error and will only reverse if “a discriminatory intent is inherent in the prosecutor’s explanation.”

United States v. Chandler, 12 F.3d 1427, 1432 (7th Cir. 1994).

Willis on the other hand argues that he preserved his

Batson claim below, which would entitle him to de novo

review as to his prima facie case, see Mahaffey v. Page,

162 F.3d 481, 484 (7th Cir. 1998), but a clear error standard of review with respect to discriminatory intent. United

States v. Jones, 224 F.3d 621, 624 (7th Cir. 2000).
Nos. 05-4616 & 05-4617 7

In light of the record below, Willis did not forfeit his

Batson claim. A Batson inquiry is very specific: is a party

trying to eliminate a potential juror because of that person’s

race or gender? The answer to this question most often

hinges on the credibility of the race-neutral reason put

forth to strike the venireperson. Batson, 476 U.S. at 98 n.21.

And evaluating the believability of the proffered reason

turns on the constellation of facts surrounding the case and

the voir dire—an evaluation better made by the district

court. Id. When a party simply objects to the opposing

party’s use of a peremptory challenge, the court has no

reason to evaluate whether the reason for dismissal was

instead a pretext for discrimination; the party could have

eliminated the venireperson for any reason, good or bad.

As a practical matter then, this Court can only find a Batson

violation articulated for the first time on appeal if the

discrimination is plain on the face of the party’s justification in the district court, and so the standard of review is

plain error. But where the prosecutor gives a race-neutral

reason for dismissal to fend off a Batson claim in advance,

a different situation arises. See Hernandez v. New York, 500

U.S. 352, 359 (1991). The district court’s and the parties’

focus are squarely on the question of discrimination,

permitting a fulsome analysis of the relevant facts surrounding the peremptory strike and permitting a slightly

more probing standard of review by this Court.

That is what happened in the district court. The court

evaluated and credited the government’s non-discriminatory reasons for dismissing Juror No. 1 in light of an

accusation—first potential, then actual—that the government dismissed her because of her race. The government prefaced its request for additional questioning

with the observation that its concerns were “in line with
8 Nos. 05-4616 & 05-4617

what [Willis’s attorney] want[ed] to talk to you about . . . .

It’s obvious there’s only one African-American juror on

the venire.” And the government’s attorney said that he,

“as an individual, did not want to strike the only AfricanAmerican prospective juror.” In addition, Willis’s attorney

accused the government of “hunting . . . for some . . .

independent reason” to strike Juror No. 1, whom he

called the “single African-American individual” in the

venire. And after the court’s decision, he renewed his

objection to the dismissal of Juror No. 1, “for the record,

the only African-American in the entire 40-member

venire.” Finally, the court characterized the government’s

concerns as “real” and “reasonable,” and it added that

“putting myself in the position of the prosecutor in this

case, I’d have the same concerns.” The court also “kn[e]w

that this juror would not be excused by the government

because of her race.” And although the court said it

would “listen to [Willis’s attorney] if he want[ed] to raise

a Batson objection,” the court did not “think it would be

well taken.” Although the treatment of the issues was not

ordered as Batson would have it, this colloquy suffices

to preserve Willis’s Batson claim for review.

Despite the standard of review, these facts are insufficient to show a Batson violation. The issue on appeal is

solely whether the government’s non-discriminatory

reason was valid and worthy of belief. It’s unnecessary

to determine whether Juror No. 1’s dismissal sufficed to

establish Willis’s prima facie case. The government gave

its race-neutral justification for striking Juror No. 1, and

the trial judge ruled that this reason was not a pretext

for discrimination. So the “issue of whether [Willis] has

established a prima facie case is moot.” United States v.

Jones, 224 F.3d 621, 624 (7th Cir. 2000).
Nos. 05-4616 & 05-4617 9

Nonetheless, the government offered a valid reason for

striking Juror No. 1, and there is no indication that the

district court erred in crediting these reasons as the “real”

reasons for dismissal. To survive a Batson challenge, the

reason offered by a party for its use of a peremptory

challenge doesn’t have to be an objectively good one; it

just can’t be race or gender and it must be the actual reason motivating the party. United States v. Brown, 34 F.3d

569, 571 (7th Cir. 1994). The jury in this case would ultimately be impaneled to decide whether Willis stole from

his employer for personal gain. Although it was by no

means inevitable, it was not unduly speculative to think

that Juror No. 1 may not have left her manager-level job

voluntarily to become unemployed. A juror who potentially harbored animosity towards a former employer

may have been, in the government’s eyes, a bit too sympathetic to a defendant charged with theft from an employer.

This may not have supported a dismissal for cause, but

“under the American legal system counsel for both parties

have a limited number of peremptory strikes to use

according to their individual intuitions regarding jurors.”

Brown, 34 F.3d at 571. And when viewed in its entirety,

the government’s statements to the court reveal a sensitivity to the dismissal of the only African-American

juror rather than racial animus. Accordingly, Willis’s Batson

claim must fail.

2. Obstruction-of-Justice Enhancements

Willis also challenges the district court’s imposition of

two obstruction-of-justice enhancements for two separate incidents of perjury. For his convictions, Willis’s

base offense level was four and the court added on twelve

levels because of the high market value of the 1300 stolen
10 Nos. 05-4616 & 05-4617

digital cameras. The district court then added two more

two-level enhancements for acts of perjury that Willis

committed during a pre-trial suppression hearing and

during trial itself. The court thought that it would be a

“bad message to send” if a single two-level increase

applied for two distinct acts of perjury, so the court added

four more levels for a total offense level of twenty. This

set the Guidelines range at thirty-three to forty-one months’

imprisonment, and the district court ultimately settled on

the maximum, a forty-one-month sentence. The government conceded that this was error on appeal, a conclusion

unswayed even after this Court requested supplemental

briefing on the treatment of analogous adjustments under

the Guidelines.

The issue is whether the district court erred in adding

two obstruction-of-justice enhancements for two distinct

acts of perjury, meaning that the point of departure

before application of 18 U.S.C. § 3553(a) should have been

an offense level of eighteen rather than twenty. The text

and commentary of § 3C1.1 do not provide much help.

Section 3C1.1 of the Sentencing Guidelines provides that

a district court should “increase the offense level by

2 levels”:

If (A) the defendant willfully obstructed or impeded,

or attempted to obstruct or impede, the administration of justice during the course of the investigation,

prosecution, or sentencing of the instant offense of

conviction, and (B) the obstructive conduct related to

(i) the defendant’s offense of conviction and any

relevant conduct; or (ii) a closely related offense. . . .

U.S.S.G. § 3C1.1 (2005). The behavior justifying the

enhancement—“obstructive conduct”—is susceptible to

either a broad or a narrow reading; the meaning of the term
Nos. 05-4616 & 05-4617 11

“conduct” can range from an “act” or “manner” to a

“process of carrying out.” WEBSTER’S THIRD NEW INTERNATIONAL 473 (1981). As a result, one could—as the district

court did—read the “obstructive conduct” punished by

§ 3C1.1. to consist of a single “act” of obstruction, justifying a separate enhancement for each obstructive act.

Or, as the parties argue, the enhancement could apply

once; a sentencing switch that is either on or off such that

the enhancement applies to the entire “process of carrying

out” the obstruction. Section 3C1.1 does not point to the

appropriate reading, and this creates an ambiguity.

But the text and commentary of other adjustments

provide more explicit guidance. Section 3C1.1 is one of

at least nineteen different adjustments in chapter three

of the Sentencing Guidelines. These provisions all provide

broadly applicable modifications to the base offense level

for “real offense elements”—circumstances of the crime

or of the defendant that apply to some or all criminal

offenses. See U.S.S.G. § 1A1.1 ed. n.4(a); ch.3 introductory

cmt. For three of these adjustments, the Sentencing Commission has provided explicit guidance on how to calculate the offense level when a defendant has committed

multiple acts supporting the same adjustment. Section

3B1.4 provides a two-level adjustment if “the defendant

used or attempted to use a person less than eighteen years

of age to commit the offense.” U.S.S.G. § 3B1.4. Just as a

defendant can perjure himself on more than one occasion,

he can employ more than one minor in committing an

offense. If that’s the case, rather than call for multiple twolevel enhancements under § 3B1.4, “an upward departure

may be warranted.” U.S.S.G. § 3B1.4 cmt. n.3. Similarly,

§ 3C1.2 provides a two-level enhancement when the

defendant “recklessly created a substantial risk of death or

serious bodily injury to another person in the course of
12 Nos. 05-4616 & 05-4617

fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2.

When “the conduct posed a substantial risk of death or

bodily injury to more than one person, an upward departure may be warranted.” Id. at cmt. n.6. Finally, § 3A1.1

provides for a two-level enhancement where the “defendant knew . . . that a victim of the offense was a vulnerable victim,” whereas if a “large number of vulnerable victims” were involved, this provision calls for a

three-level adjustment. U.S.S.G. § 3A1.1(b)(2).

These three sections make it clear that a sentencing

court should not apply the obstruction-of-justice adjustment more than once for multiple acts of obstruction.

Where a particular adjustment expressly provides for a

higher offense level for multiple acts, as with § 3A1.1’s

treatment of a “large number of vulnerable victims,” it is

not through multiple applications of the enhancement

for each act calling for an adjustment. And where there is

no express numerical increase in the offense level for

multiple acts, the commentary indicates that a departure may be warranted. But no other provision in

chapter three calls for the use of multiple adjustments for

multiple acts, and given that these provisions provide

the same type of adjustment to the defendant’s base offense

level, they should apply in a consistent manner. Thus,

consistent with the commentary in §§ 3B1.4 and 3C1.2,

we hold that multiple acts of perjury produce a single

two-level enhancement under § 3C1.1 and possibly a

higher or above-Guidelines sentence based on the discretion conferred by 18 U.S.C. § 3553(a), not the imposition

of multiple obstruction-of-justice enhancements.

In a sense, this conclusion is largely procedural and

does not substantively alter a district court’s ability to deal

with a serial perjurer. The Sentencing Guidelines are
Nos. 05-4616 & 05-4617 13

famously advisory, and the district court has substantial discretion in choosing a reasonable sentence; a

discretion that includes consideration of multiple acts of

obstruction. But before this discretion kicks in, the

district court must first properly calculate the advisory

Guidelines range, United States v. Elliot, 467 F.3d 688, 691

(7th Cir. 2006), and to do so means that the court should

only apply the obstruction-of-justice enhancement once.

Although this Court hasn’t plumbed the complexities of

this issue before, our approach in previous cases has

been consistent. See, e.g., United States v. Huerta, 239 F.3d

865, 870 (7th Cir. 2001); United States v. Furkin, 119 F.3d

1276, 1283-84 (7th Cir. 1997). And other circuits have

reached a similar conclusion. See, e.g., United States v.

Ventura, 146 F.3d 91, 97 (2d Cir. 1998); United States v.

Clements, 73 F.3d 1330, 1342 (5th Cir. 1996); United States v.

Vaught, 133 Fed. Appx. 229, 235 (6th Cir. 2005); United

States v. Fields, 963 F.2d 105, 109 (6th Cir. 1992). Accordingly, the district court erred in applying multiple twolevel enhancements for Willis’s perjury. Instead, it

should have analyzed the additional act of perjury as a

basis for a higher or non-Guidelines sentence under the

factors listed in 18 U.S.C. § 3553(a).

B. Trout’s Appeal

1. Prosecutorial Misconduct

Trout argues that the government committed prosecutorial misconduct by objecting during his attorney’s closing

argument. Prior to his arrest, Trout had confessed to

Chicago police officers Sofrenovic and Combes. When

Officer Combes testified, he relied on the notes that he

took during Trout’s interview to remember the specifics
14 Nos. 05-4616 & 05-4617

of what they had discussed, although the notes themselves were inadmissible hearsay. During his closing

argument, Trout’s attorney characterized the government’s

case as “boil[ing] down to . . . this statement that they

claim that Mr. Trout made.” He characterized Officer

Combes as a “nice guy” who “knows nothing”and questioned his reliance on his notes, which were, in his estimation, of dubious value. Trout’s attorney continued,

[T]here is something wrong here with a case in which

the government really only has some handwritten

notes which you don’t even get to hold in your hands

or look at, that say that the defendant is guilty and

that he admitted it. And then these very—

At this point, the government objected, saying that it had

“no objection to the notes going back.” After a brief colloquy between the government and the court, Trout’s

attorney objected himself, stating that the government was

“interrupting my closing argument in an improper way.”

The court sustained Trout’s attorney’s objection, calling the

“interruption . . . not warranted,” and the closing argument

continued uninterrupted.

Almost immediately after the jury began deliberating,

it sent out its first note:

Dear Judge, can we see a written copy of the defendant’s statement to the police, even an edited copy?

We know the notes of the [sic] Detective Combes are

not considered evidence, but can we see a copy of his

statement from the arrest report or from the supplemental report prepared by the detectives on the case?

Sincerely, the jury.

The judge called the jury into court and explained that

the desired evidence was inadmissible hearsay. The
Nos. 05-4616 & 05-4617 15

court continued: it was regrettable that the jury did “not

have all the information [it] would like to have but . . . this

is frequently the situation in trials where evidence

that might be interesting or even relevant is for one reason

or another excluded from consideration.” The “trier of

fact . . . has to get along without it.”

After the court sent the jury back to resume deliberations,

the government expressed its concern that the court’s

statement might have given the jury the impression that

Combes’s testimony regarding Trout’s statement was

“something they almost can’t consider.” Concerned that

it had “misled them into thinking they can’t rely on

their recollection,” the court called the jurors back in and

told them that they “must rely on [their] recollection

unassisted by the materials” requested of the court. After

the jury resumed deliberating, Trout’s attorney filed a

motion for a new trial or for a curative instruction. He

cited the government’s objection during his closing argument and he claimed that the court emphasized the notes

in its remarks to the jury. The court denied the motion, and

after a few more notes to the court (two of which are

discussed in the final section below), the jury convicted

Trout.

On appeal, Trout argues that he was denied a fair trial

by the government’s objection during his closing argument and that the district court erred in failing to declare a mistrial. This Court evaluates prosecutorial misconduct that does not implicate an enumerated constitutional right to “determine whether [it] deprived the

defendant of a fair trial.” United States v. Cotnam, 88 F.3d

487, 498 (7th Cir. 1996). To make that determination, we

first evaluate the objection in isolation, and if it was

improper, we then examine the objection “in light of the
16 Nos. 05-4616 & 05-4617

entire record to determine if the defendant was deprived

of a fair trial.” Id. We have identified five factors that

are relevant in weighing the prejudice of the prosecutor’s

comments: “1) the nature and seriousness of the prosecutorial misconduct, 2) whether the prosecutor’s statements were invited by impermissible conduct by defense

counsel, 3) whether the trial court instructed the jury to

disregard the statements, 4) whether the defense was

able to counter the improper statements through rebuttal,

and 5) the weight of the evidence against the defendant.”

Id.; United States v. Rodriguez, 63 F.3d 546, 558 (7th Cir.

1995). Trout raised this objection below in the context of

a motion for a new trial, the denial of which we review

for an abuse of discretion. United States v. Humphrey, 34

F.3d 551, 557 (7th Cir. 1994).

The government’s decision to object during the defendant’s closing argument is not unproblematic. Aside from

disrupting the defendant’s final chance to present his case

to the jury, it was largely unnecessary. For a minor objection, which was the kind made here, the government can

always use its rebuttal to correct any misstatement made by

the defendant or, if the situation demanded, seek a curative

instruction. But regardless whether the objection rose to the

level of improper conduct, which we do not decide, Trout’s

trial was fair. In the first place, although the timing of the

objection was not ideal, the defendant invited the response.

See Darden v. Wainwright, 477 U.S. 168, 181-82 (1986). Both

sides knew that Officer Combes’s notes were inadmissible

hearsay. Nonetheless, Trout’s attorney sought to use the

fact of this inadmissibility to weaken the thrust of the

testimony recounting his client’s confession. In addition,

the prejudice resulting from the objection was minimal.

Trout argues that the objection improperly emphasized
Nos. 05-4616 & 05-4617 17

Officer Combes’s testimony regarding his confession. But

Trout’s closing argument—most notably, the remarks that

precipitated the objection—largely focused on Officer

Combes’s testimony and his notes irrespective of the

government’s objection. And, later in his closing remarks,

Trout’s attorney impugned Officer Combes’s testimony

with the fact that he needed the notes to remember what

had happened. Instead of attempting to lessen the alleged

prejudice arising from the government’s objection, which

Trout’s attorney had an opportunity to do, he continued to

discuss the notes. Accordingly, the incremental weight

placed on the notes by the government’s objection was

slight. Finally, the district court properly instructed the jury

regarding how it must evaluate the evidence through its

supplemental instructions. Although the jury note indicated some confusion regarding the evidence, the court’s

supplemental instructions were a proper statement of

the law regarding the notes. So if the government’s interjection caused any confusion, these instructions would

have cleared it up. Rodriguez, 63 F.3d at 559. As a result,

the government’s objection could not have denied Trout

a fair trial.

2. Improper Commentary on Trout’s Failure to

Testify

Trout also claims that the government impermissibly

commented on his failure to testify during its rebuttal to his

closing argument. During his own closing, Trout’s attorney

made much of the “immense passage of time” between the

December 2000 robbery and the trial. In his estimation, the

“case boils down to . . . this statement that [two police

officers] claim Mr. Trout made.” These officers had “no

memory of what happened” and “simply read . . . what
18 Nos. 05-4616 & 05-4617

happened four and a half years ago.” These “obviously

professional witnesses” could “avoid having their memory

tested.” And Officer Combes, whom Trout’s attorney had

“some more respect for,” could not “remember anything,

zero, zip.” In closing, he remarked that he was “angry that

this man is being put through this for four-and-a-half years

based on a flimsy and completely unsupported claim

that . . . he confessed to this crime,” a confession that was

before the jury based on the “completely evaporated

memories of two police officers.”

During its rebuttal, the government addressed the

statements made by Trout’s attorney:

It should be clear to everyone here now that a very

large part of our case centers on the statement, the

confession, made by Mr. Trout. What I am befuddled

by . . . is whether that statement has ever really been

challenged. I mean, I was confused, I have to admit, by

defense counsel’s concession that Stephan Combes,

the guy who wrote down the notes, who told you

about what . . . Mr. Trout said, . . . is an honest guy.

So in order for . . . us to disregard the confession,

someone will have to have lied. Someone is lying about

what was said by Mr. Trout. But there is really no

challenge to the credibility of the officers. And you

heard Detective Combes testify.

* * *

Now, on the one hand . . . he is challenging the memory of the police officers, as that somehow benefits the

government. But think about it. If you have police

officers who are going to lie, who are willing to break

the law, who are going to try to frame someone, as
Nos. 05-4616 & 05-4617 19

what’s being suggested here although not said, then

why admit on the stand, I don’t remember?

* * *

Now, what we have done is we have distracted you

now from the admissions that were made by Mr. Trout,

which are not being challenged. And that confession,

seals his fate.

Finally, the government concluded by noting that “the

heart of our case rests with the statement.”

Trout argues that these statements indirectly commented on his failure to testify, which, because his attorney did not object in the district court, we review for

plain error. United States v. Sandoval-Gomez, 295 F.3d 757,

762 (7th Cir. 2002). To safeguard the defendant’s Fifth

Amendment right against self-incrimination, the government cannot offer a defendant’s failure to testify as

“substantive evidence of guilt,” whether directly or

indirectly. United States v. Robinson, 485 U.S. 25, 34 (1988);

United States v. Cotnam, 88 F.3d 487, 497 (7th Cir. 1996). In

a criminal trial, there may be times when it is “highly

unlikely that anyone other than the defendant could rebut

the evidence” offered by the government. Freeman v. Lane,

962 F.2d 1252, 1260 (7th Cir. 1992). In these circumstances,

a statement by the government that this evidence went

“uncontradicted” could, as a matter of logic, permit the

jury to draw a negative inference from the defendant’s

failure to testify. Despite these limits, the Fifth Amendment

does not otherwise prevent the government from commenting on the evidence adduced at trial. A “comment on the

‘uncontradicted’ or ‘uncontroverted’ evidence” is not

always reversible error “since the absence of contradiction

has evidentiary value, no matter who the logical person to
20 Nos. 05-4616 & 05-4617

furnish the contradiction.” Kurina v. Thieret, 853 F.2d 1409,

1416 (7th Cir. 1988). To separate the permissible from the

impermissible, this Court looks to the context of the

statements to decide whether (1) it was the prosecutor’s

“manifest intention” to use the defendant’s silence

as evidence of guilt; or (2) “the remark was of such a

character that the jury would ‘naturally and necessarily’ ”

treat it as such. Cotnam, 88 F.3d at 497; Robinson, 485 U.S.

at 33.

Trout cites the prosecution’s use of the phrases “no

challenge” and “not being challenged” as proof that the

government indirectly commented on his decision not to

testify. Trout only confessed to Officers Sofrenovic and

Combes, and thus a statement that their testimony was

“not challenged” would, in his estimation, necessarily

point to his silence. These terms can produce constitutional violations when, “by default,” the only person

capable of “challenging” the government’s claims was a

non-testifying defendant. See Cotnam, 88 F.3d at 497.

But whether the government had the “manifest intention” to treat the defendant’s silence as evidence of

guilt depends on the context of the statement, not the

government’s use of certain proscribed terms. Robinson,

485 U.S. at 33. In light of the efforts by Trout’s attorney

to discredit Officer Combes in his closing, the government’s statements cannot be read as a commentary on

the defendant’s failure to testify. It was instead an attempt

to rehabilitate Officer Combes’s credibility by focusing

on “the accuracy and reasonableness of” his testimony,

which is an entirely proper line of argument. United States

v. Harris, 271 F.3d 690, 700-01 (7th Cir. 2001). In order to

disregard his testimony entirely, the jury would have

needed to conclude that Officer Combes was being less
Nos. 05-4616 & 05-4617 21

than truthful or otherwise not worthy of belief. But, the

government argued, no one had challenged his credibility.

And despite Trout’s attorney’s argument that Officer

Combes’s memory was fuzzy, the government argued

that there was no indication that he had provided bad

information. Given the statements made by Trout’s attorney, it was reasonable for the government to stress

Officer Combes’s credibility in its rebuttal, including an

effort to stress the validity of his testimony. Because the

jury would have seen the government’s statements in this

context, it would not have “naturally and necessarily”

interpreted the government’s argument to be a commentary on the defendant’s silence.

3. District Court’s Treatment of the Final Jury Notes

Finally, Trout argues that the district court improperly

responded to a jury note indicating that the jury could

not reach a verdict. The jury would ultimately send out

four notes. Its third asked the court:

Is it possible to convict on either count while finding

the defendant innocent of the other? In other words,

could we find the defendant guilty on Count 1 but not

guilty on Count 2? Or is it impossible from a legal

perspective to decide he’s not guilty on Count 2 if

we find him guilty on the conspiracy charge?

The court read the note to the parties and solicited responses. The government argued that a supplemental

instruction was in order and agreed that the jury could

reach different verdicts as to the two counts. Trout’s

attorney also agreed that “the instructions and the verdict forms make[ ] it clear that . . . there can be guilt on

either side.” The court then called the jury in, read the
22 Nos. 05-4616 & 05-4617

jury’s note, and gave an affirmative answer to all three

questions posed in the note before the jury returned to its

deliberations.

Later that afternoon, the jury sent its fourth note, informing the court that

[H]aving discussed both of the charges and having

tried to reconcile our differences of opinion without

success, we wish to report to you our inability to reach

a unanimous verdict on either count.

The court had provided the jurors an instruction prior

to deliberations—a so-called Silvern instruction—informing

them that they should make every effort to reach a unanimous verdict based on their deliberations and their honest

beliefs regarding the facts from trial. After reading the

jury’s note to the parties, the court said that it saw “no

point in repeating the Silvern instruction.” Instead, it

decided to “ask whether there is any juror who has any

opinion that with further deliberation they could reach

a verdict on either count.” The court thought that

“the answer [would] be no,” but wanted to “take that

final step” before discharging the jury. Neither party

objected, and the judge brought in the jury and asked

whether “any juror . . . has any belief that there is any

prospect at all of a verdict on either count with further

deliberation.”

In response, one juror asked whether the court was

“implying that [the jury] could come to a verdict on one

count and then still not” convict on the other. The court

said this would be permissible, and one juror responded

that he’d like to continue deliberating. Another juror

then pointed the judge’s attention to the Pinkerton instruction that the court had given to the jury, which said
Nos. 05-4616 & 05-4617 23

that a guilty verdict as to the conspiracy count plus a

finding that the robbery occurred required a conviction

as to the robbery count as well. Nonetheless, the court

told the jury that a guilty verdict as to the conspiracy

count and no verdict as to the robbery count was a possibility because sometimes “juries will reach verdicts that

are apparently inconsistent, and that is permitted.” The

court then sent the jury off to continue deliberating, and the

jury eventually convicted Trout of the conspiracy charge

and acquitted him of the robbery count.

On appeal, Trout raises two challenges to the court’s

treatment of the fourth jury note, both raised for the first

time on appeal and thus reviewed for plain error. United

States v. Miller, 159 F.3d 1106, 1110 (7th Cir. 1998). First,

Trout argues that the district court failed to follow the

proper procedures for responding to the jury’s fourth note.

When a jury sends out a note to the district court, “the

jury’s message should [be] answered in open court and . . .

[the defendant’s] counsel should have . . . an opportunity

to be heard before the trial judge respond[s].” United States

v. Rogers, 422 U.S. 35, 39 (1975). And because the defendant

has a right to be present “at every trial stage,” FED.R. CRIM.

P. 43(a)(2), he must be present during the discussion of

jury notes as well. United States v. Patterson, 23 F.3d 1239,

1254 (7th Cir. 1994). Here, before responding to the jury’s

note, the district court read the note in open court,

which included the defendant, and the court told the

parties that if the jurors indicated that they were deadlocked, it would discharge them. Trout’s attorney had no

objection to this approach at the time, nor has he challenged it on appeal. Instead, Trout argues that the district court erred in responding to the jury’s follow-up

questions when it was already in the court. In his view,
24 Nos. 05-4616 & 05-4617

the court should have first discussed the individual

juror’s question with the parties outside of the jury’s

earshot before providing an answer.

But Trout has waived this claim because his attorney

had already agreed to the substance of the court’s response

during the discussion of the third jury note. United States v.

Askew, 403 F.3d 496, 505 (7th Cir. 2005). The jury’s third

note asked the court whether it could reach different

verdicts on the two counts. The court discussed this note

with the parties, and Trout’s attorney agreed with the

court’s affirmative answer. The judge then brought the

jury in and so instructed them, without Trout’s attorney

raising any objection. The follow-up discussion following

the court’s question to the jury covered the same ground

as the third note. Accordingly, Trout cannot claim that

he should have been consulted before the court gave the

same answer.

In addition, Trout argues that the district court erred in

the substance of its response to the jury’s note. He claims

that the judge tendered an instruction that did not

comply with this Court’s decision in United States v. Silvern,

484 F.2d 879 (7th Cir. 1973). In Silvern, this Court provided

a model instruction for a district court to give when a

jury is deadlocked. In so many words, the instruction

gently urges the jury to continue deliberating, reminding

each juror to listen to the other jurors and to be open to

the opinion of others without surrendering her honest

beliefs. United States v. Rodriguez, 67 F.3d 1312, 1321 (7th

Cir. 1995). If a district court deviates from the approved

instruction, this Court will reverse if the ultimate instruction given was “coercive of unanimity.” Id. at 1320. Trout

claims that the district court’s statements to the jury

were just that; the court should have given the Silvern
Nos. 05-4616 & 05-4617 25

1 We do not decide whether it was proper for the district court

to tell the jury that it could reach legally inconsistent verdicts.

Trout has not specifically challenged this instruction on appeal,

though he pointed to the district court’s statements on the

matter as being more “coercive of unanimity” for purposes of

his Silvern argument. This claim fails both because, as discussed, the jury was not deadlocked and, having agreed to this

supplemental instruction following the third note, Trout has

waived the claim. This Court’s reluctance to allow a defendant

to make nullification arguments to the jury would suggest

that an instruction permitting inconsistent verdicts would

seldom, if ever, be warranted. See, e.g., United States v. Anderson,

716 F.2d 446, 449 (7th Cir. 1983). But because the issue is not

directly before us, we express no opinion on the matter.

instruction rather than tell the jury it could reach different verdicts on the two counts.

But before a court is required to give a Silvern instruction,

the jury must be deadlocked, Miller, 159 F.3d at 1110-11,

and because the jury was not deadlocked in Trout’s case,

no Silvern instruction was required. After the judge

asked the jury whether it was deadlocked and told the

jury they could reach different verdicts on the two counts,

a juror immediately told the judge that “we’d like to talk

about it.” The court then discussed the possible verdicts the

jury could reach after it was clear that the jury was able

to reach a decision or, at a minimum, continue deliberating.

In light of the court’s inquiry, the jury was simply not

deadlocked, and if that’s the case, Silvern is irrelevant.

Accordingly, Trout’s argument that the district court

erred in not reading the Silvern instruction must fail as

well.1
26 Nos. 05-4616 & 05-4617

III. Conclusion

For the foregoing reasons, we AFFIRM both Willis’s and

Trout’s convictions, but VACATE Willis’s sentence and

REMAND for resentencing.

USCA-02-C-0072—4-23-08